United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

Appearances:

James Polianites, Esq.,

Office of the Regional Solicitor, Boston, MA

  For the Complainant

Paul J. Katz, Attorney

Chestnut Hill, MA

  For the Respondent

Before:   Carol A. Baumerich

  Administrative Law Judge

DECISION AND ORDER

  Respondent MPS Products Corp. (Respondent or MPS) is a business engaged in steel erection construction. In response to a complaint, the Occupational Safety and Health Administration (OSHA) inspected Respondent’s steel erection worksite in Rockland, Massachusetts. Following inspection, OSHA issued to Respondent a two-item serious citation and a notification of penalty alleging employee exposure to fall hazards, in violation of steel erection standard 29 C.F.R. § 1926.760(a)(1) and in violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 654(a)(1). The Secretary proposed a total penalty of $10,140.00 for the citation.

Respondent MPS timely contested the citation, bringing the matter before the Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of the Act, 29 U.S.C. § 659(c). A hearing was held in Boston, MA on February 23, and March 15, 2018. 1 Both parties were represented by counsel at the hearing. Both parties filed post-hearing briefs. Respondent filed a reply brief.

For the following reasons, serious citation 1, item 1 is vacated, serious citation 1, item 2 is affirmed, and a total penalty of $5,070.00 is assessed.

JURISDICTION

  Based on the record, I find that at all relevant times Respondent MPS was engaged in a business affecting interstate commerce and was an employer within the meaning of sections 3(3) and 3(5) of the Act. I also find that the Commission has jurisdiction over the parties and subject matter of this proceeding. (Tr. 9; Answer; Resp. Br. 4).

ISSUES

Complainant, the Secretary of Labor (Secretary), contends that Respondent MPS violated OSHA steel erection standard 29 C.F.R. §1926.760(a)(1), when employees were exposed to falls greater than fifteen (15) feet to the ground, while working on a horizontal steel beam without using fall protection. Respondent denies violating the standard cited. Respondent contends that any violation found was due to unpreventable employee misconduct?

The issues are:

The Secretary also contends that Respondent MPS violated section 5(a)(1) of the Act, the general duty clause, when an employee was exposed to fall hazards, of up to twenty-nine (29) feet, while climbing and standing on the guardrails of an up-right self-propelled scissors lift and when exiting the lift to access the structure’s upper level where employees were working. Respondent denies violating the general duty clause. Respondent contends that any general duty clause violation found resulted from unpreventable employee misconduct.

  The issues are:

FINDINGS OF FACT

The Company and the Inspected Worksite.

  MPS is a steel erection company. MPS works on large projects erecting steel buildings and on small, miscellaneous, iron installation projects. MPS has been in business since approximately 2014. MPS works on between ten and thirty projects in a year. (Tr. 105, 114, 160-61, 173, 235, 238, 319).

Michael Pimental is the President of MPS Products Corporation. (Tr. 113-14). Mr. Pimental has been an ironworker most of his life. (Tr. 117, 319-20). Typically, for approximately the year before the OSHA inspection, Mr. Pimental worked in the office, estimating, bookkeeping, and project managing. (Tr. 117). He described himself as stuck in the office. (Tr. 143).

MPS has approximately eight employees. Employees always work in crews. There is always a foreman, also known as a competent person, on each jobsite, working with the crew, watching the workers. (Tr. 114, 130-31). MPS has three Foremen, including Riccardo Servizio and Jose dos Santos Pais.2 (Tr. 313, 316, 345). MPS foremen have an OSHA-30 card, training in CPR, first-aid, and in key industry hazards, fall protection and connecting. (Tr. 130-31, 232-35, 361; Ex. R-35(c); Attachment B).

According to Mr. Pimental the highest risk factor in the steel erection industry is falls. (Tr. 115-16, 162). Foreman Servizio agreed. Ironwork is a dangerous job. The biggest hazard any MPS employee encounters is falling from the steel structure since serious injury or death may result. (Tr. 317-18, 321-22, 347).

The MPS Worksite on the Day of the OSHA Inspection

On the day of the OSHA inspection, January 13, 2017, MPS was engaged in the steel erection of a building, at 276 Weymouth Street, Rockland, Massachusetts. (Tr. 319). The project was known as “Upper Baby” (Uppa Baby), the name on the plans for the steel building MPS was erecting. 3 (Tr. 271-75, 296, 400; Ex. R-40; Ex. R-42). The worksite superintendent was Herb Volpe, who worked for Integrated Builders. (Tr. 25). Other than MPS, no other company was on the worksite that day. (Tr. 319).

At this worksite, the MPS competent person was Foreman Riccardo Servizio.4 The crew was Foreman Servizio’s responsibility. The foreman is responsible for enforcing MPS’s safety rules, including the fall protection rule. (Tr. 350, Ex. R-1, p. 2). Foreman Servizio’s job was to tell the employees what to do for the day and to make sure the job flowed. (Tr. 114, 131, 317, 319).

On the day of the OSHA inspection, Foreman Servizio was the only MPS foreman on site. (Tr. 318, 390). There were seven MPS employees under his supervision, including Sabastian dos Santos,5 Marcello DaCruz, and Romiro Jorge.6 (Tr. 319, 332, 338-40; Ex. R-9; Ex. R-16, Ex. R-33). Foreman Servizio described the work performed that day as routine and repetitive. The work was to connect the steel, land the joists, spread them. (Tr. 360). On the day of the OSHA inspection the project was on schedule. (Tr. 227). The project was halfway erected. (Tr. 328).

At the morning meeting that day, Foreman Servizio told worker DaCruz to weld the bridging out of the lift. 7 DaCruz was told to stay in the lift. (Tr. 170, 325-27, 334-36, 344, 388). It was anticipated that DaCruz’s work assignment may take him from the first level to the second level of the structure. (Tr. 326-27). While not present at the worksite that day, it was Mr. Pimental’s understanding that worker Jorge also was assigned to weld the bridging of the structural member. (Tr. 144-45).

Worker DaCruz was assigned to work at a location halfway down the project, about eighty to one hundred feet (80 – 100 feet) from where Foreman Servizio was working giving direction to the connectors and to the workers rigging steel. (Tr. 327-29). Foreman Servizio recalled that worker Jorge worked in the vicinity of worker DaCruz.8 (Tr. 330). The other MPS employees worked near Foreman Servizio. (Tr. 330). That day, employee dos Santos worked as a “connector,” connecting the steel.9 (Tr. 332, 338-40).

The OSHA Inspection.

  On the morning of January 13, 2017, at 9:00 a.m., the OSHA Boston South (Braintree), Massachusetts, Area Office received a complaint about possible fall hazards on a steel construction worksite in Rockland, Massachusetts. In response to the complaint, that day OSHA Compliance Safety and Health Officer (CO) Alfonso Leone traveled to the worksite to conduct an inspection. CO Leone arrived at the worksite, located at 276 Weymouth Street, Rockland, Massachusetts, around 11:00 a.m. Upon arrival, CO Leone parked on the side of Weymouth Street and observed an active construction worksite. Two levels of steel were in place. (Tr. 17-18, 20, 26; Ex. C-1).

CO Leone observed a worker sitting and standing on a steel beam, on the second level, the top level of the structure. The worker wore a harness, but the worker was not tied off using fall protection. The worker appeared to be handling a welding lead. CO Leone photographed the individual on the second level of the steel, from his location on Weymouth Street, offsite, beginning at 11:03 a.m.10 (Tr. 19-23, 63, 66-68, 94; Ex. C-2, pp. 5, 6, 7, 8; Ex. C-5). The worker photographed, assigned to do welding, was later identified by Mr. Pimental and Foreman Servizio as Marcello DaCruz.11 (Tr. 170, 381-84; Ex. C-2, pp. 6, 7; Ex. R-5(b), p. 3). Worker DaCruz had been instructed to weld the bridging of the structural steel from the scissor lift. (Tr. 170, 325-27, 335, 388).

Mr. Pimental testified that worker DaCruz had a harness and lanyard when photographed. He did have a beamer.12 He was not using fall protection. (Tr. 120). Foreman Servizio agreed that the OSHA inspection photograph shows worker DaCruz, out of the lift, walking along on the steel without being tied off. (Tr. 386, 388-89; Ex. C-2, pp. 7, 8). Foreman Servizio agreed that it would have been apparent to him or anyone in authority that worker DaCruz was not working from the scissor lift as instructed. (Tr. 388-89).

  CO Leone photographed employees on the worksite for several minutes. He then drove onto the worksite and parked. CO Leone entered the office trailer and spoke to worksite Superintendent Volpe. Mr. Volpe identified the worker on the steel as employed by MPS. CO Leone explained that OSHA received a complaint about an alleged fall hazard on the jobsite and he was present to conduct an inspection. At CO Leone’s request, Mr. Volpe contacted MPS to have them provide a representative for the OSHA opening conference. (Tr. 24-27, 65; Ex. C-5). Superintendent Volpe showed CO Leone the site drawings, indicating the height of the second level of steel as twenty-nine (29) feet.13 (Tr. 35, 37-38, 95-96; Ex. C-2, p. 4). Mr. Volpe said he believed the employees were connecting. (Tr. 61).

As Mr. Volpe contacted the MPS representative for the OSHA opening conference, before the opening conference began, CO Leone stepped outside onto the front platform of the office trailer. While on the front platform, CO Leone observed a worker climb out of a red Skyjack scissor lift. To exit the red scissor lift, the worker stepped on the lift’s mid-rail and top rail, and then pulled himself up onto the steel beam. The worker wore a harness but was not tied off. CO Leone observed the worker, on the steel, with a harness and lanyard in hand. Once on the steel beam, he still was not tied off. CO Leone photographed the worker on the steel beam at 11:21 a.m. (Tr. 27-32, 39, 45, 72, 94, 166; Ex. C-2, pp. 1, 2, 3; Ex. C-5).

The worker photographed, who exited the red Skyjack scissor lift by climbing the lift’s rails, was later identified by Mr. Pimental and Foreman Servizio as Romiro Jorge.14 Mr. Pimental testified that the OSHA inspection photograph shows worker Jorge on the beam walking, with a beamer in his hand. (Tr. 140, 166, 384-85; Ex. C-2, p.1; Ex. 5(b), p. 4). It was Mr. Pimental’s understanding that worker Jorge had been assigned to weld the bridging of the structural member. According to Mr. Pimental, MPS rents all-terrain scissor lifts so employees can weld bridging out of the lift per their usual procedure. Lifts are used on all MPS jobsites. There is no evidence Foreman Servizio specifically instructed worker Jorge to work from the lift that day. (Tr. 135, 144).

From outside the trailer looking up, CO Leone also observed and photographed Foreman Servizio working on the second level of the steel. (Tr. 38). When Foreman Servizio was called to the meeting with the OSHA compliance officer, he told the workers to take lunch. (Tr. 387, 390, 392). Walking to the office trailer for the meeting, Foreman Servizio did not look up to see where the workers were working or whether they were wearing their safety equipment. (Tr. 387).

  In the office trailer, before the OSHA opening conference began, CO Leone introduced himself to Foreman Servizio and explained the reason for his presence at the worksite, that OSHA had received a complaint regarding fall protection. (Tr. 32-34, 391-92; Ex. R-16, pp. 2-3).

Foreman Servizio said the height of the top portion of the steel was twenty-nine (29) feet. CO Leone asked why the worker was not tied off. Foreman Servizio said the MPS worker who was working at the height of twenty-nine (29) feet was welding. The workers were not tied off because they were connecting. CO Leone asked the current stage of the steel erection. Foreman Servizio answered they were in the connecting stage. CO Leone asked at what height fall protection is required. Foreman Servizio answered thirty (30) feet. (Tr. 32-34, 61-62).

  During the inspection, Foreman Servizio told CO Leone that MPS works with a safety consultant. He said MPS holds mandatory safety meetings for all MPS employees, including at this worksite. (Tr. 75-77).

  CO Leone conducted the OSHA opening conference, in the office trailer, with Foreman Servizio and a representative from Integrated Builders. CO Leone stated that he may interview employees and advised of the employee protections stated in section 11(c) of the Act. (Tr. 34-35).

  Following the opening conference, CO Leone conducted a walk-around of the worksite. (Tr. 35, 361-62). During the walk-around, CO Leone does not recall observing the welder or other employees working on the second level of the steel at twenty-nine (29) feet. (Tr. 36, 53, 362). During the walkaround, Foreman Servizio testified the workers were at lunch. (Tr. 390).

During the walk-around, CO Leone observed that when the MPS employees had been working at twenty-nine (29) feet, they could have been seen from virtually every angle. Nothing interfered with his or Foreman Servizio’s view to the second level of the structure from the ground. If Foreman Servizio had looked up when the MPS workers were on the steel, they would have been in plain view. (Tr. 38).

CO Leone noted that the structure appeared to be fully bolted. He walked around the building perimeter. There was a crane in the back of the building. During CO Leone’s inspection, the crane was not in use or positioned to hoist structural components, columns, or beams to the next level. During the walk-around, CO Leone inspected the crane. The crane was out of service for maintenance. There were tools and an oil pan under the crane. (Tr. 36-37, 41-42, 88, 389; Ex. R-9, p. 2; Ex. R-33, p. 1).

On the day of the OSHA inspection, a crane from Chelmsford Crane Service, Inc., was on site.15 (Tr. 244, 332-34, 371, 389; Ex. R-42). During a segment of that day, the crane was not operating, as maintenance was needed.16 CO Leone credibly testified that from the time he arrived at the worksite, at approximately 11:00 a.m., until the conclusion of the OSHA inspection, the crane was out of service. When CO Leone photographed workers on the structural steel, the crane was not operating. (Tr. 36-37, 41-42, 88; Ex. C-2; Ex. R-9, p. 2; Ex. R-33, p. 1).   

  CO Leone asked Foreman Servizio to speak to the two workers he photographed during the inspection. CO Leone asked to speak to the worker he observed climbing the rails to exit the lift onto the steel beam, whom he photographed on the beam. In response to CO Leone’s request, one worker came over to speak with him.17 The worker said he received fall protection training and lift training. The worker said he climbed out of the lift because there was no place to put a ladder on the steel. CO Leone did not speak to the other worker, a welder. (Tr. 37-40, 53; See Ex. R-16, pp. 2-3).

  During the inspection, CO Leone recalled seeing a ladder from the ground to the first level of the structure. He did not see a ladder from the ground to the second level of the structure. (Tr. 47. See Ex. R-16, pp. 2-3).

CO Leone conducted a closing conference. He reminded the participants that the employee he interviewed had protections under section 11(c) of the OSH Act. CO Leone reviewed his inspection observations regarding the lack of fall protection. CO Leone stated that because the worker was welding and not connecting, and because there was no hoisting equipment being used, the worker was required to be protected from falls at fifteen (15) feet. (Tr. 40-41; Ex. R-16, pp. 2-3.). Foreman Servizio recalled a brief closing conference. 18 (Tr. 339).

  Following the on-site inspection, CO Leone contacted Mr. Pimental to advise of the inspection. Mr. Pimental provided training certifications to OSHA. (Tr. 43-44, 70).

Foreman Servizio testified that at some point on the morning of the OSHA inspection, he looked up and observed that workers DaCruz and Jorge were tied off. (Tr. 380-81, 386). Foreman Servizio had a clear view to the location where DaCruz and Jorge were assigned to work that morning to observe that they were tied off. Later that morning, when DaCruz and Jorge worked on the steel without fall protection, Foreman Servizio’s view likewise would have been unobstructed. 19 At the hearing, after reviewing the OSHA inspection photographs, Foreman Servizio assumed that between 11:00 a.m. and 11:20 a.m. that morning, when CO Leone was photographing the worksite, he did not look up to observe the workers. Later that morning as he walked to the office trailer to meet with CO Leone, at approximately 11:45 a.m., Foreman Servizio also did not look up to observe the workers. (Tr. 386-89; Ex. C-2, pp. 1, 6, 7).

MPS’s Workplace Safety Rules and Safety Training

  From the beginning MPS worked closely with a safety consultant Contractors Risk Management (CRM) to put together a safety plan. MPS uses CRM to stay current with safety training and new regulations. Since 2013, CRM provided most of the training sessions for MPS employees. (Tr. 104-05, 116, 118, 281, 287-88, 291; Ex. R-1, Ex. R-5(a); Attachment B).

MPS’s Safety Program has many components, including safety rules, formal and informal mandatory training sessions, jobsite hazard analyses for some projects, safety oversight by jobsite foremen, safety monitoring inspections conducted by CRM and, when competing work demands permit, by Mr. Pimental. Review of the hearing record reveals that, in the period before and during the OSHA inspection, there were gaps in the execution of MPS’s Safety Program. The MPS Safety Program prepared by CRM includes a progressive disciplinary policy to address safety violations and unannounced safety monitoring inspections conducted by CRM. The record reveals that when CRM observed and reported unsafe conditions during worksite inspections, MPS did not follow through and discipline the workers or foremen who engaged in the observed unsafe actions. In the period before and during the OSHA inspection, the record reveals MPS’s Safety Program lacking, due to inadequate safety oversight by the worksite foreman and lax enforcement when the safety rules were violated.

Workplace Safety Rules and Disciplinary Policy

  In 2014, CRM prepared MPS’s Safety Program to follow the OSHA Subpart R Steel Erection regulations.20 (Tr. 118-19, 281, 287-88). One chapter in the Safety Program concerns fall protection. (Tr. 118-19). The Safety Program states that for general employees, detail crews, and deckers “[e]mployees on a walking / working surface with an unprotected edge more than 15 feet above a lower level must be protected.” (Ex. R-1, p. 45). The Safety Program also includes fall protection requirements for employees working as “Connectors – meaning those working with a hoisting device.” 21

Foreman Servizio stated MPS’s fall protection safety rule provides that a worker, who is not connecting, must be tied off if he is on the steel at fifteen (15) feet or higher. If the worker is connecting, he is allowed up to thirty (30) feet before being tied off. (Tr. 322, 337). Fall protection includes the worker’s harness, lanyard, and beamer to clamp to the steel as an anchor point. The workers must wear their fall protection equipment. (Tr. 322-23, 340-41).

The MPS Safety Program in evidence does not set forth safety rules regarding scissor lifts, generally, or exiting scissor lifts, specifically. (Ex. R-1). MPS recognizes that standing or climbing lift railings exposes the worker to a fall hazard. This conduct is improper. (Tr. 136-40). CRM provides MPS employees lift safety training. (Tr. 139; Attachment B). Foreman Servizio testified that MPS has a rule that workers are not to climb the rails of a lift. (Tr. 334-35).

Foreman Servizio testified that the fall protection rule and the rule that workers are not to climb the rails of a lift are very important, because if a worker falls off the steel, the worker could be hurt or possibly die. Throughout Foreman Servizio’s employment with MPS, these two rules have been active. (Tr. 347).

MPS has a progressive disciplinary policy regarding safety violations, included in the MPS Safety Program, prepared by CRM in 2014. Pursuant to the policy, discipline for safety violations will progress as follows: 1st Violation: Verbal Warning, with documentation from the supervisor. 2nd Violation: Written Warning, signed by you and your supervisor, to be placed in your permanent record. 3rd Violation: Up to one-week suspension without pay, with documentation placed in your permanent record. 4th Violation: Grounds for termination. (Tr. 167-70, 172, 350-51; Ex. R-1; Ex. R-5(a)). The disciplinary policy included in the MPS Safety Program is dated May 2014; however, before the OSHA inspection, there are no records supporting Respondent’s claim that MPS workers were aware of this policy. Before the OSHA inspection, there are no signed documents that MPS employees understand the terms and conditions of the policy. 22 (Compare Ex. R-5(a) and Ex. R-44 with Ex. R-5(b) and Ex. R-35(a), pp. 3, 4, 5). There is no evidence that an employee was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection.

Mr. Pimental testified that employees sign a certification located at the back of the Safety Program, stating that they read, understand, and will follow the Safety Program. (Tr. 121-22, 128-29, 357; Ex. R-1; Ex. R-44). The only signed Safety Program certifications in evidence are dated June 12, 2017, six (6) months after the OSHA inspection, signed by Foreman Servizio and workers DaCruz and Jorge. 23 (Tr. 280-82, 409; Ex. R-44).

A different progressive discipline policy regarding MPS rules, including safety rules, is set forth in the June 11, 2015 letter from Mr. Pimental to employees. In addition to safety, the June 2015 letter addresses various MPS rules including conduct while on and off the job, approval for supply pickup, the responsibility of foremen for assigned trucks after hours, employees not allowed in the shop office area, no yelling or profanity, and metal scrapping, among other rules. (Ex. R-35(a), pp. 3,4; Ex. R-35(b), pp. 3, 4; Ex. R-35(c), pp. 4, 5). Pursuant to the policy stated in the June 11, 2015 letter, discipline for rule violations will progress as follows: first offense - verbal warning, second offense - $150.00 fine, third offense - one week off with no pay. There is no evidence that an employee was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection. (Ex. R-5(b), pp. 1, 2 (written and signed verbal warnings issued to foremen).   

Safety Training

Mr. Pimental testified that he cares about the safety of his employees. “I don’t feel that I am lucky because I haven’t had an accident since the start of the company. I feel that I’ve done the proper training.” (Tr. 223-24, 225; See Tr. 115, 132, 317).

All MPS employees receive new safety equipment: harnesses, retractable lanyards, hardhats, and beamers. Every employee has a beamer, some employees have two beamers. The beamer instruction manual is used in MPS fall protection training. (Tr. 119-20, 164, 341, 349, 164-66; Ex. R-4).

During new employee orientation, Mr. Pimental asserts that the MPS Safety Program is reviewed with the new employee, pointing out the highest risk factors in the industry. (Tr. 121-22, 128-29, 135, 163-64, 356-57; Ex. R-1). As part of the new employee orientation program, every employee receives CRM training, including fall protection and lift safety training. (Tr. 122, 135, 159, 347, 361; Attachment B). Following orientation, the new employee is assigned to “shadow” a foreman on the jobsite, to familiarize the employee with MPS procedures and safety practices. (Tr. 121-23, 159, 337, 347, 356-57, 361).

CRM provides most MPS employee safety training. (Tr. 116). Except for the very first CRM training session at MPS, all subsequent CRM training sessions at MPS were conducted by CRM Safety Specialist Armand Bisson.24 (Tr. 238, 268-69; Ex. R-36). Three or four times a year, CRM comes to the MPS office to retrain all MPS employees. These training and refresher training sessions are mandatory. (Tr. 142-43, 162-63, 307, 344-45, 365). Prior to the OSHA inspection, CRM provided connector, fall protection, boom lift, scissor lift, and controlled decking zone training, to MPS employees.25 (Tr. 104-05, 163, 305-06, 344-45, Ex. R-39; Ex. R-69; Attachment B). Following receipt of the OSHA citation in this case, Mr. Pimental had everyone go through safety retraining on key points, fall protection, connecting, and ladder safety. The OSHA citation revealed refresher training was needed. MPS posted the OSHA citation. (Tr. 136, 141, 235; Ex. 10(a)).

CRM documents each training session with a sign-in sheet. All CRM training sign-in sheets are on file with CRM for 2014, 2015, and 2016. 26 (Tr. 143, 172-73, 226). CRM prepares and issues training certification cards to document the training session topic and the employee who attended the training. Mr. Pimental maintains the CRM employee training certification cards. Also all CRM training certification cards are on file with CRM. (Tr. 122, 143, 158-59, 163, 304-08, 344-45, 365; Ex. R-39; Ex. R-69; Attachment B). All the CRM training certification cards that predate the OSHA inspection that were in Mr. Pimental’s possession are in evidence. (Tr. 307-08; Attachment B).

A review of the CRM training certification cards during the period prior to the OSHA inspection for identified MPS employees working on the Upper Baby worksite discloses the following training. Foreman Servizio and workers DaCruz, Jorge, and dos Santos received boom lift and scissor lift training on June 23, 2014 and fall protection training on March 30, 2016. Foreman Servizio and worker DaCruz received OSHA Subpart R for controlled decking zone training on June 24, 2014. Foreman Servizio and workers DaCruz and dos Santos received connector safety training on March 30, 2016. (Tr. 156-58, 223-35, Ex. 35(a)(b)(c); Ex. R-39; Ex. R-69; Attachment B).

There is no evidence that worker Romiro Jorge received connector safety training. Mr. Pimental was unable to state the training worker Jorge received. (Tr. 156; Attachment B).

Respondent highlights MPS’s claimed “excessive” training at hearing and in post hearing briefing. (Tr. 226; Resp. Br. 14, 21, 24). Review of the CRM training certification cards in evidence disclose that only Foreman Servizio and worker DaCruz attended all CRM training sessions, prior to the OSHA inspection. (Attachment B).

  In addition to CRM training, MPS also provides informal employee safety training. Each workday before work begins, the MPS foreman conducts a morning meeting at the jobsite. At the morning meeting, Foreman Servizio directs the workers regarding their work assignment for the day, such as welding or connecting. He also reminds employees who will work on the steel to tie off. (Tr. 326, 344-45, 359, 365). On large jobs for which a job hazard analysis (JHA) has been conducted, the job foreman will informally communicate the JHA to employees at the morning meeting. (Tr. 123-24, 129-30, 159-61, 342-43, 361).

  Toolbox Talks are conducted by the jobsite foreman, each Wednesday. Different safety topics related to commercial construction are presented on a rotating basis, such as housekeeping, fall protection, lift safety, ladder safety, and hydration on hot days, among others. Several undated Toolbox Talk training records were offered into evidence, as examples. 27 The workers in attendance sign the bottom of the Toolbox Talk training sheet. (Tr. 124-25, 141-42, 161-64, 200-10, 342-43, 345; Ex. R-35(a), pp. 3, 4).

  Two days before the OSHA inspection, Foreman Servizio conducted a Toolbox Talk for the workers at the Uppa Baby jobsite. Workers DaCruz and Jorge attended the talk. The general training topic was Construction Safety Guidelines. Twenty recommendations to maintain safe work practices are listed on the training sheet. (Tr. 270-79; Ex. R-40). Foreman Servizio did not testify regarding this Toolbox Talk; therefore, the record is silent regarding the amount of time spent discussing this Toolbox Talk and which of the twenty safe work practice recommendations were discussed. Generally, Foreman Servizio presented Toolbox Talks by reading “the piece of paper,” explaining the paper, and answering any questions asked. (Tr. 342-43).

Worksite Safety Monitoring and Enforcement

CRM conducts unannounced worksite safety inspections of MPS’s larger projects to check whether MPS employees are compliant with the safety rules. MPS scheduling of the CRM unannounced safety inspections is job specific. Mr. Pimental testified that he usually sends CRM to a specific worksite every other week. (Tr. 136, 198, 240, 284, 364).

Following their worksite safety inspection, CRM prepares a written safety report for MPS. Once received, Mr. Pimental reviews and files the report. If the report notes deficiencies, Mr. Pimental speaks with CRM to find out what they observed at the jobsite. (Tr. 184, 198, 290-91, 300, 396). Mr. Pimental estimates that he receives a worksite safety report from CRM every other week. If this estimate is accurate, for 2015 and 2016, the two years prior to the OSHA inspection, MPS would have approximately fifty CRM worksite safety inspection reports. Mr. Pimental testified MPS has numerous CRM worksite safety reports on file. (Tr. 284, 290-91, 364). Again, Respondent “selected” a small number of CRM Work Site Safety Inspection Reports to offer in evidence, as examples.28 (Ex. R-13; Ex. R-20(a); Ex. R-20(b); Ex. R-41; Ex. R-57).

It is notable that CRM inspected MPS’s Upper Baby worksite twice, once before the OSHA inspection and once after. (Tr. 391). The Upper Baby CRM Work Site Safety Inspection Reports would be most relevant to the fact finding in this case. Respondent did not introduce these reports into evidence. 29

Some of the select reports Respondent placed in evidence show safety compliance and only minor safety violations.30 Other reports disclose serious safety violations and safety concerns observed by CRM. There is no evidence that MPS disciplined the foremen or workers observed violating safety rules noted in the CRM Work Site Safety Inspection Reports.

For example, CRM inspected the MPS worksite at Herb Chambers Lincoln Volvo, on September 17, 2015. The MPS Foreman was Shawn Hysette. See Attachment B. The CRM Project Work Site Safety Inspection Report notes “serious” fall protection violations. Workers John and Sebastian were observed and photographed not properly tied off. Their lanyards were wrapped around steel and tied back to themselves. Also Sebastian was observed walking to the work area across steel before tying off. The need to maintain one hundred percent fall protection while on steel above fifteen (15) feet was noted. The condition of the fall protection equipment available for use was discussed with the foreman. CRM suggested that a thorough inspection be done on all fall protection available for use. (Ex. R-13, pp. 1, 4).

MPS did not discipline Foreman Hysette or workers John or Sebastian for this serious fall protection safety violation. (Tr. 300, 377-78; Ex. R-13, pp. 1, 4). 31 Foreman Servizio did not hear anything about these employees not being tied off in 2015. The identified employees have worked on Foreman Servizio’s crew. Foreman Servizio does not recall either employee receiving discipline for not tying off in 2015.32 (Tr. 377-78).

As a further example, on November 16, 2016, CRM inspected the Parcel 25 Project. The CRM client was NEI General Contracting, not MPS. MPS workers were on the worksite at the time of the inspection. A steel erector was observed using a beam clamp with PFAS [personal fall arrest system]. Also observed was an MPS ironworker engaged in unsafe behavior, having no personal protective equipment (PPE), safety glasses / face shield when using a cutoff saw. Mr. Pimental recalls following up with CRM regarding this report. (Tr. 283-91; Ex. R-41). There is no evidence that the ironworker was disciplined for the safety violation of working without PPE.

The final example offered details another worksite inspection. On December 13, 2016, CRM conducted a work site safety inspection of the MPS jobsite located at 141 Needham Street. The Foreman was Jose dos Santos Pais. While the fall hazards are noted as well protected, the report also noted that the foreman did not know what an SDS [safety data sheet] was and the safety program was not on site. The report noted the unsafe condition of the access ladder to the roof not extending three feet above the landing. The CRM inspector specifically included his observation that “this crew needs an update in steel erection standards.” (Tr. 191-93, 197-98, 312-13; Ex. R-20(b)).

Regarding MPS jobsite visits, prior to the OSHA inspection, Mr. Pimental had limited opportunity to step away from his office responsibilities and make unannounced site visits. Typically, beginning approximately a year before the OSHA inspection, Mr. Pimental worked in the office, estimating, bookkeeping, and project managing. (Tr. 117). He characterized it as being stuck in the office. (Tr. 143). Mr. Pimental testified that it was difficult to say how often he visited job sites, “a few times a month, but again, it’s all on my workload.”33 (Tr. 240). Mr. Pimental did not visit the Upper Baby worksite during the week of the OSHA inspection. (Tr. 396).

Respondent issued only two disciplinary notices for safety violations prior to the OSHA inspection. These notices were issued to MPS foremen. On October 5, 2016, Foreman Jose dos Santos Pais received a verbal warning for not having his retractable lanyard hooked on while in the boom lift. On November 14, 2016, Foreman Riccardo Servizio received a verbal warning for not having his hard hat. Foreman Servizio had no recollection of receiving discipline for this hard hat safety violation. (Tr. 169-70, 190, 313-14, 379; Ex. R-5(b), pp. 1, 2). Mr. Pimental confirmed these are the only MPS disciplinary documents prior to the OSHA inspection. (Tr. 173). Notably, prior to the OSHA inspection no disciplinary notices were issued to MPS employees.

The only other disciplinary records in evidence are the verbal warnings given to workers DaCruz and Jorge for being on the steel, not being tied off, on the day of the OSHA inspection. Worker DaCruz’s verbal warning is dated January 13, 2017. Worker Jorge’s verbal warning is dated January 16, 2017. Mr. Pimental and Foreman Servizio testified that worker Jorge was disciplined for exiting the lift by climbing the lift railings. The lift rail climbing safety violation is not stated on the verbal warning worker Jorge received. (Tr. 140-41, 170, 190, 313-14, 346-47, 381, 389, 394-95; Ex. R-5(b), pp. 3, 4). Foreman Servizio was not disciplined for the fall protection violations observed on the day of the OSHA inspection. (Tr. 379).

ANALYSIS

Alleged Violations

The Secretary alleges that MPS violated 29 C.F.R. § 1926.760(a)(1),34 on or about January 13, 2017 at the inspected worksite, when employees working without fall protection and engaging in steel erection activities, while working on horizontal steel beams, were exposed to fall hazards greater than fifteen (15) feet to the ground below. Respondent’s workers were not protected from falls by guardrail systems, safety net systems, personal fall arrest systems, positioning device systems, or fall restraint systems. (Complaint, Ex. A; Ex. R-9).

Applicable Law

To establish a violation of an OSHA standard, the Secretary must establish that: (1) the standard applies to the facts, (2) the employer failed to comply with the terms of that standard, (3) employees had access to the hazard covered by the standard, and (4) the employer had actual or constructive knowledge of the violation (i.e. the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition). Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Applicability and Violation.

  Respondent was engaged in steel erection work at the inspected worksite. In post-hearing briefing, Respondent admits the Secretary proved that the cited fall protection standard was applicable to the worksite hazard cited and was violated. (Resp. Br. 27, 38; Resp. Reply Br. 3-4).

Both workers Romiro Jorge and Marcello DaCruz were observed and photographed by CO Leone walking and working on steel beams at a height of twenty-nine (29) feet above the ground level without being tied off to an anchor point.35 They were exposed to the hazard of falling from that height. The standard requires that employees walking or working on structural steel fifteen (15) feet above a lower level be protected from fall hazards.36 (Tr. 19-23, 63, 66-68, 94, 140, 166, 170, 325-27, 355, 381-86, 388-89; Ex. C-2, pp. 1, 5, 6, 7, 8).

The fall protection standard cited was applicable to the worksite hazards observed. The standard was violated.

Exposure

The OSHA inspection photographs show workers DaCruz and Jorge exposed to fall hazards while walking and working on steel beams at a height of twenty-nine (29) feet above the ground level without being tied off to an anchor point. (Ex. C-2, pp. 1, 5, 6, 7, 8). Respondent agrees ironwork is a dangerous job. The biggest hazard any MPS employee encounters is falling from the steel structure since serious injury or death may result. (Tr. 115-16, 162, 317-18, 321-22, 347). Workers DaCruz and Jorge were exposed to the hazards the steel erection fall protection standard 29 C.F.R. § 1926.760(a)(1) addresses.

Knowledge

Respondent’s knowledge of the serious violation may be established by showing that the employer knew, or with reasonable diligence could have known of the violative condition. 29 U.S.C. § 666(k). See e.g., Nat’l Eng’g & Contracting Co. v. OSHRC, 928 F.2d 762, 767 (6th Cir. 1991); Revoli Constr. Co., 19 BNA OSHC 1682, 1684 (No. 00-0315, 2001). An employer’s awareness of the violation may be shown through actual or constructive knowledge of the hazardous condition. The actual or constructive knowledge of a supervisor may be imputed to the employer. See N & N Contractors, Inc., 18 BNA OSHC 2121, 2123 (No. 96-0606, 2000), aff’d, 255 F.3d 122 (4th Cir. 2001); Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2069 (No. 96-1719, 2000); A.P. O’Horo Co., 14 BNA OSHC 2004, 2007 (No. 85-369. 1991).

To establish constructive knowledge, an employer must fail to exercise reasonable diligence in discovering the hazardous condition. Precision Concrete Constr., 19 BNA OSHC 1404, 1407 (No. 99-0707, 2001). Whether an employer was reasonably diligent rests on a variety of factors, “including the employer's obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence of violations.” Id.; See Pride Oil Well Serv., 15 BNA OSHC 1809, 1814 (No. 87-692, 1992).

Constructive knowledge is imputed where a supervisory employee knew or should have reasonably known about the safety violation. P. Gioioso & Sons, Inc. v. OSHRC, 675 F.3d 66, 73 (1st Cir. 2012) (Gioioso II), citing Cent. Soya de P.R., Inc. v. Sec'y of Labor, 653 F.2d 38, 40 (1st Cir.1981) (where two supervisors in charge of facility knew of the hazard, the supervisory employees’ knowledge of the hazardous condition existing within the scope of their supervisory responsibility, was properly imputed to the employer).

The Secretary contends that MPS had constructive knowledge of the violative conduction, as MPS failed to exercise reasonable diligence to discover and prevent the fall protection violation. Foreman Servizio failed to effectively monitor worker compliance with Respondent’s safety rules. Foreman Servizio knew or reasonably should have known of the fall protection safety violations. (Sec’y Br. 10-11, 14-15).

Regarding knowledge, Respondent contends that the violation occurred in a matter of seconds and could not have been known to the foreman. (Resp. Br. 3, 9).

MPS had work rules and training programs to address steel erection fall hazards. The MPS Safety Program includes a rule requiring employees to wear and use fall protection when working at heights fifteen (15) feet above a lower level. (Ex. R-1, p. 45). Both workers DaCruz and Jorge received CRM fall protection training. (Appendix B). Foreman Servizio testified that when workers are assigned to work on the steel, he reminds the workers to tie off. On the day of the OSHA inspection, workers DaCruz and Jorge had not been assigned to work on the steel. The Secretary does not dispute that Respondent had work rules that it communicated to its employees. (Sec’y Br. 15, n.1).

MPS’s fall protection rule and CRM fall protection training show that Respondent anticipated the fall hazards present for workers engaged in steel erection. Respondent acknowledged that the biggest hazard any MPS employee encounters is falling from the steel structure as serious injury or death may result. MPS’s fall protection rule was communicated to employees during CRM training sessions, new employee orientation, morning meetings with the jobsite foreman, and Toolbox Talks.

Close review of the hearing record reveals that on the Upper Baby worksite on the day of the OSHA inspection, Foreman Servizio provided inadequate safety oversight and supervision to the MPS employees. That day both workers DaCruz and Jorge were observed and photographed by CO Leone walking on steel beams at a height of twenty-nine (29) feet above the ground level without being tied off to an anchor point. Both workers were exposed to the hazard of working on the structural steel without fall protection. (Ex. C-2, pp. 1, 5, 6, 7, 8). It is the obligation of the worksite foreman to supervise the work and call attention to employee safety lapses. (Tr. 31).

That day, before the workers left the steel structure for their lunch break, Foreman Servizio also worked on the second level of the steel. Between 11:00 a.m. and 11:20 a.m. that morning, when CO Leone was photographing the worksite, Foreman Servizio assumed that he did not look up. That morning as he walked to the office trailer to meet CO Leone at approximately 11:45 a.m., Foreman Servizio did not look up to see where the workers were working or whether they were wearing their safety equipment. (Tr. 38, 386-89; Ex. C-2, pp. 1, 6, 7). The inspection photographs document the violative activity for approximately twenty (20) minutes. (Ex. C-2).

During the OSHA inspection walk-around, CO Leone observed that when the MPS employees had been working at twenty-nine (29) feet, they could have been seen from virtually every angle. Nothing interfered with his or Foreman Servizio’s view to the second level of the structure from the ground. If Foreman Servizio had looked up when the MPS workers were on the steel, they would have been in plain view. (Tr. 38).

Foreman Servizio testified that he directed worker Da Cruz to work from the scissor lift. OSHA inspection photographs reveal that workers DaCruz and Jorge were walking and working on the steel, not working from the scissor lifts. Foreman Servizio agreed that it would have been apparent to him or anyone in authority that worker DaCruz was not working from the scissor lift as instructed. (Tr. 386, 388-89; Ex. C-2, pp. 7, 8).

The safety violations of workers DaCruz and Jorge were readily apparent had Foreman Servizio taken steps to observe them. The record reveals that Foreman Servizio’s attention during the workday was on the specific tasks in which he was directly engaged, not on ensuring compliance with the workplace safety rules generally. Foreman Servizio testified that when he has a “moment” to move away from the work he is supervising, he “tries” to look around the jobsite to make sure everyone is in compliance. (Tr. 329, 347-48). Foreman Servizio testified that he “tries” his best to keep an eye on his crew to make sure everyone is in compliance. “I try to stay on them best I can, but I’m very busy.” (Tr. 363). On the morning of the OSHA inspection, Foreman Servizio’s attention was on the crane, flying the steel, and giving direction to the connectors and the workers rigging the steel. (Tr. 327-28).

The facts and testimony confirm that Foreman Servizio’s safety oversight and supervision was inadequate. Obvious safety violations were in plain view had Foreman Servizio only looked. See Kokosing Constr. Co., 17 BNA OSHC 1869, 1871 (No. 92-2596, 1996) (“The conspicuous location, the readily observable nature of the violative condition, and the presence of [the employer’s] crews in the area warrant a finding of constructive knowledge.”); Hamilton Fixture, 16 BNA OSHC 1073, 1089 (No. 88-1720, 1993) (finding an employer is chargeable with knowledge of conditions which are plainly visible to its supervisory personnel), aff’d 28 F.3d 1213 (6th Cir. 1994); Ted Wilkerson, Inc., 9 BNA OSHC 2012, 2016 (No. 13390, 1981) (the leadman “would have been in a position to observe” the employee engaged in the hazardous conduct.).

Further, it appears Foreman Servizio did not recognize that workers DaCruz and Jorge working on the steel at twenty-nine (29) feet without being tied off was a safety rule violation. Foreman Servizio incorrectly believed that the worker who was welding was “connecting” and the fall protection requirement to be being tied off was not required below thirty (30) feet.37 (Tr. 32-34, 61-62, 322, 337). See Note 36 above. The record does not disclose whether Foreman Servizio knew worker Jorge had not received connector training. Failure to properly monitor and enforce the steel erection fall protection rules on this worksite also discloses inadequate supervision.

MPS did not take adequate measures to prevent the occurrence of violations. Review of the hearing record reveals that in the period before and during the OSHA inspection, there were gaps in the execution of MPS’s Safety Program. The MPS Safety Program prepared by CRM includes a progressive disciplinary policy to address safety violations and unannounced safety monitoring inspections conducted by CRM. The record reveals that when CRM observed and reported unsafe conditions during worksite inspections, MPS did not follow through and discipline the workers or foremen who engaged in the observed unsafe actions. In the period before and during the OSHA inspection, the record reveals MPS’s Safety Program lacking, due to inadequate safety oversight by the worksite foreman, as discussed above, and lax enforcement of worksite safety when safety rules were violated.

MPS has a progressive disciplinary policy regarding safety violations, included in the MPS Safety Program. (Tr. 167-70, 172, 350-51; Ex. R-1; Ex. R-5(a); Ex. R-44). The disciplinary policy included in the MPS Safety Program is dated May 2014; however, before the OSHA inspection, there are no records supporting Respondent’s claim that MPS workers were aware of this policy. Mr. Pimental testified that employees sign a certification located at the back of the Safety Program, stating that they read, understand, and will follow the Safety Program. However, the only signed Safety Program certifications in evidence are dated June 12, 2017, six (6) months after the OSHA inspection. (Ex. R-44). See Note 23 and accompanying text above. There is no evidence that an employee was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection.

MPS has a different progressive discipline policy regarding MPS rules, including safety rules, set forth in the June 11, 2015 letter from Mr. Pimental to employees. (Ex. R-35(a), pp. 3, 4; Ex. R-35(b), pp. 3, 4; Ex. R-35(c), pp.4, 5). There is no evidence that any employee was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection. (Ex. R-5(b), pp. 1, 2 (verbal warnings issued to foremen); Ex. R-35(a), pp. 3, 4). There is no evidence either MPS progressive disciplinary policy was used to enforce safety violation prior to the OSHA inspection.

CRM conducts unannounced safety inspections of MPS’s larger projects to check MPS employee compliance with the safety rules, as noted previously. Following the worksite safety inspection, CRM prepares a written safety report for MPS, which Mr. Pimental reviews and files. If the report notes deficiencies, Mr. Pimental speaks with CRM to discuss their worksite observations. (Tr. 184, 198, 240, 290-91, 300, 364, 396).

Review of the few, select, CRM Work Site Safety Inspection Reports Respondent offered into evidence disclose serious safety violations or safety concerns observed by CRM. There is no record of MPS issuing discipline to the foremen or workers observed violating the safety rules. There is no evidence of safety program enforcement through MPS’s progressive disciplinary policies. Respondent witness CRM employee Brian Stevens testified that he did not know how MPS administered discipline. In other words, Mr. Stevens did not know how MPS enforced safety rules when employees engaged in unsafe behavior. (Tr. 107). See Note 24 above.

In September 2015 CRM inspected the MPS worksite at Herb Chambers Lincoln Volvo. The CRM September 2015 report notes “serious” fall protection violations. MPS did not discipline the worksite foreman or workers observed engaging in the serious fall protection safety violations. (Tr. 300, 377-78; Ex. R-13, pp. 1, 4). Foreman Servizio did not hear anything about these employees not being tied off in 2015.38 (Tr. 377-78).

On November 16, 2016, CRM inspected the Parcel 25 Project. The CRM client was NEI General Contracting not MPS. An MPS ironworker was observed engaged in unsafe behavior, no personal protective equipment (PPE), safety glasses / face shield when using a cutoff saw. (Tr. 283-91; Ex. R-41). There is no evidence that the ironworker was disciplined for the safety violation of working without PPE.

Respondent issued only two disciplinary notices for safety violations to foremen prior to the OSHA inspection. On October 5, 2016, Foreman Jose dos Santos Pais received a verbal warning for not having his retractable lanyard hooked on while in the boom lift. On November 14, 2016, Foreman Riccardo Servizio received a verbal warning for not having his hard hat. Foreman Servizio had no recollection of receiving this discipline, showing this warning lacked the intended consequence of promoting safety compliance. (Tr. 169-70, 190, 313-14, 379; Ex. R-5(b), pp. 1, 2). Mr. Pimental confirmed that these are the only MPS disciplinary documents prior to the OSHA inspection. (Tr. 173). Before the OSHA inspection, there is no evidence that MPS issued disciplinary notices for safety violations to any MPS employee.

The only other disciplinary records in evidence are the verbal warnings given to workers DaCruz and Jorge for being on the steel, not being tied off, on the day of the OSHA inspection. Respondent contends that worker Jorge was disciplined for exiting the lift by climbing the lift rails. The lift rail climbing safety violation is not stated on the verbal warning worker Jorge received. (Tr. 140-41, 170, 190, 313-14, 346-47, 381, 389, 394-95; Ex. R-5(b), pp. 3, 4). Foreman Servizio was not disciplined for the fall protection violations observed on the day of the OSHA inspection. (Tr. 379; Sec’y Br. 16-17).

The record reveals that in the period before and during the OSHA inspection, MPS’s safety program was lacking, due to lax enforcement of worksite safety. CF & T Available Concrete Pumping, Inc., 15 BNA OSHC 2195 (No. 90-329, 1993) (Employer’s lack of safety enforcement program established constructive knowledge.).

Knowledge Summary

On the day of the OSHA inspection, the fall protection safety rule noncompliance of workers DaCruz and Jorge was in plain view, readily observable by worksite Foreman Servizio. The fall protection violations were apparent and should have been known to Foreman Servizio. Foreman Servizio’s failure to see the open and obvious fall protection violations, that were in plain view, is evidence of Foreman Servizio’s lack of reasonable diligence. I find Respondent, through Foreman Servizio, had constructive knowledge that workers DaCruz and Jorge were working on the structural steel at twenty-nine (29) above the ground without using fall protection. See Simplex Time Recorder Co. v. Brock, 766 F.2d 575, 589 (D.C. Cir. 1985) (knowledge found where the violations cited were “based on physical conditions and on practices . . . readily apparent to anyone who looked and indisputably should have been known to management.”).

Respondent also failed to exercise reasonable diligence through its lax enforcement of worksite safety when safety rules were violated. Respondent’s failure to exercise reasonable diligence establishes constructive knowledge. Respondent had two written progressive disciplinary policies concerning safety. These policies remained on paper unused regarding observed, reported, MPS employee safety violations. Respondent’s lax enforcement of worksite safety discloses Respondent failure take measures to prevent the occurrence of violations.

Classification

The Secretary characterizes the violation of 29 C.F.R. § 1926.760(a)(1) as serious. A violation is “serious” if there is a substantial probability that death or serious physical harm could have resulted from the hazardous condition. The OSH Act, section 17(k), 29 U.S.C. § 666(k); Nat’l Eng’g & Contracting Co. v. OSHRC, 928 F.2d at 767. Workers DaCruz and Jorge were observed and photographed working on structural steel at the height of twenty-nine (29) feet, without using fall protection. It is not disputed that a fall from the structural steel at twenty-nine (29) feet could result in severe injury or death. (Tr. 54-55, 162, 317-18, 321-22, 347). The citation item is properly characterized as serious.

The Secretary alleges that MPS violated section 5(a)(1) of the OSH Act, the general duty clause,39 on or about January 13, 2017, at the inspected worksite, when an employee was exposed to fall hazards of up to twenty-nine (29) feet from the top rails of an up-right self-propelled scissors lift, model Skyjack SJ 683 ZRT (Skyjack lift), while climbing and standing on the guardrails and exiting the lift to access the structure’s upper level where employees were working.

The Secretary alleges that one feasible means to abate the hazard, among others, would be to utilize a ladder to access the upper working surface, after the steel decking is put in place and a Controlled Access Zone is established. The use of a boom lift of proper size and design for the terrain40 would also serve this purpose.

Further, the Secretary alleges that another feasible means to abate the hazard would be to access and egress the upper working surface of the steel beam through the access gate of the aerial lift after the employee secures himself to a fall protection system. (Tr. 47-51; Complaint, Ex. A; Ex. R-16).

Applicable Law

To prove a violation of the general duty clause, the Secretary must establish that: (1) a condition or activity in the workplace presented a hazard, (2) the employer or its industry recognized the hazard, (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible and effective means existed to eliminate or materially reduce the hazard. See, e.g., Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004) (citation omitted). The Secretary must also establish that the employer knew, or with the exercise of reasonable diligence could have known, of the hazardous condition. Burford's Tree, Inc., 22 BNA OSHC 1948, 1949 (No. 07-1899, 2010) (citations omitted) aff’d, 413 F. App’x 222 (11th Cir. 2011) (unpublished).

Respondent does not contest that the actions of a worker, climbing the scissors lift rails to access the upper level of the structure, presented a workplace hazard, recognized by Respondent and the steel erection industry, that was likely to cause death or serious physical harm. Respondent does not contest that the Secretary proved a feasible and effective means existed to eliminate or materially reduce the hazard cited. (Resp. Br. 28, 38; Resp. Reply Br. 3). Respondent contends that the Secretary has not proved constructive knowledge regarding the general duty clause violation. (Resp. Reply Br. 1-3).

The hazardous workplace activity

  During the OSHA inspection, CO Leone observed worker Jorge climb out of a red Skyjack scissor lift. To exit the scissor lift, worker Jorge stepped on the lift’s mid-rail and top rail, and then pulled himself up onto the steel beam, to access the upper level of the structural steel, at twenty-nine (29) feet above the ground. When he exited the lift and pulled himself up onto the steel beam, worker Jorge was not tied off. CO Leone photographed worker Jorge walking on the steel beam not tied off. (Tr. 27-32, 39, 45, 72, 94, 140, 166, 384-85; Ex. C-2, pp. 1, 2, 3). The Secretary asserts that a worker climbing the guardrails to enter and exit an aerial lift, exposes the worker to fall hazards, and potentially subjects the lift to destabilizing stresses for which it was not designed. (Tr. 50).

Worker Jorge’s actions of climbing the lift’s mid-rail and top rail to exit the scissor lift to access the upper level of the structural steel, at twenty-nine (29) feet above the ground, is a hazardous activity.

Hazard recognition

  There is no dispute, a worker climbing the rails of a scissor lift, raised to the height of approximately twenty-nine (29) feet above ground, is a hazard likely to cause death or serious physical harm. The MPS Safety Program in evidence does not set forth safety rules regarding scissor lifts, generally, or exiting scissor lifts, specifically. (Ex. R-1). MPS recognizes that standing or climbing lift railings exposes the worker to a fall hazard. This conduct is improper. (Tr. 136-40; Resp. Br. 9, 39).

Foreman Servizio testified that MPS has a rule that workers are not to climb the rails of a lift. A worker climbing the lift rails could slip and fall. Throughout Foreman Servizio’s employment with MPS, this rule has been active. (Tr. 334-35, 34, 360; Resp. Br. 9).

The manufacturer’s Skyjack Operating Manual, in the section entitled Safety Precautions, includes a pictogram of an individual climbing on the lift’s guardrails, covered by the universal NO sign, a circle with a crossline. The accompanying text states: “DO NOT sit, stand or climb on the guardrails.” (Ex. C-4, p. 2, manual p. 15; Tr. 45, 48-49, 137-38).

Mr. Pimental testified that MPS employees receive CRM lift training that includes the Skyjack Operating Manual. Foreman Servizio testified he believes the MPS rule that workers are not to climb the rails of a lift was adopted from the lift manufacturer’s operating manual. (Tr. 137-39, 334-35; Ex. C-4; Attachment B; Resp. Br. 20).

The construction industry also recognizes the hazard of climbing the mid-rail and top rail to exit an aerial lift. The American National Standards Institute (ANSI) standard for self-propelled elevating work platforms, ANSI/SIA A92.6-2006, also instructs that the railings of an aerial platform should not be climbed.41

Hazard likely to cause death or serious physical harm

There is no dispute, a worker climbing the rails of a scissor lift, raised to the height of approximately twenty-nine (29) feet above ground is a hazard likely to cause death or serious physical harm. Respondent acknowledged the highest risk in steel erection is falls. Foreman Servizio testified that the MPS rule that workers are not to climb the rails of a lift is very important, because if a worker falls off the steel, the worker could be hurt or possibly die. (Tr. 162, 347; Resp. Br. 38).

Feasible abatement of the hazard

  Respondent does not contest that the Secretary has proved a feasible and effective means existed to eliminate or materially reduce the hazard cited. (Resp. Br. 28, 38).

The Secretary proposes two feasible means to abate the hazard presented by a worker climbing and standing on the lift guardrails to exit the lift to access the structure’s upper level where employees were working. First, a feasible means to abate the hazard would be to utilize a ladder to access the upper working surface. (Tr. 47, 51; Complaint Ex. A). It is not disputed that use of a ladder is a feasible means to abate the hazard.

Second, the Secretary asserts another feasible means to abate the hazard would be to access and egress the upper working surface of the steel beam through the access gate of the aerial lift after the employee secures himself to a fall protection system. CO Leone testified that the lift could be repositioned, elevated to the working surface level, to enable the worker to exit the lift through the lift gate. (Tr. 46-51; Sec’y Br. 10; Complaint Ex. A.). This alternative method to abate the hazard is rejected, as it is contrary to the safety precautions stated in the manufacturer’s Skyjack Operating Manual.42

Use of a ladder to access the upper level of the structure is a feasible means to abate the hazard. It would materially decrease the fall hazard presented by the worker accessing the structure’s upper level by climbing the lift’s rails.

Knowledge of the hazardous workplace activity

The Secretary contends that MPS had constructive knowledge of the violative conduction. In ignoring readily observable hazards, Foreman Servizio had constructive knowledge of the fall hazard to which worker Jorge was exposed. (Sec’y Br. 10-11).

Respondent contends that the Secretary has not proved constructive knowledge regarding the general duty clause violation. Respondent’s contends that the violation occurred in a matter of seconds and could not have been known to the foreman. (Resp. Br. 3, 9; Resp. Reply Br. 1-3).

During the OSHA inspection, while standing on the front platform of the office trailer, CO Leone observed worker Jorge climb out of a red Skyjack scissor lift. To exit the red scissor lift, worker Jorge stepped on the lift’s mid-rail and top rail, and then pulled himself up onto the steel beam. In the time it took CO Leone to photograph worker Jorge, he was on the steel, with a harness and lanyard in hand. On the steel beam, he was not tied off. CO Leone photographed worker Jorge on the steel beam, after he climbed out of the lift at 11:21 a.m. (Tr. 27-32, 39, 45, 72, 94, 166; Ex. C-2, pp. 1, 2, 3; Ex. C-5).

MPS did not have actual knowledge of the worker Jorge’s hazardous conduct in climbing the lift’s rails. Mr. Pimental and Foreman Servizio had never seen an employee climb out of a lift. (Tr. 43-44, 360).

Whether an employer exercises reasonable diligence involves the consideration of several factors, “including the employer’s obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence of violations.” Precision Concrete Constr., 19 BNA OSHC at 1407. Constructive knowledge may be established from an employer’s failure to exercise reasonable diligence in inspecting the worksite. Evaluating the reasonable diligence factors, the Commission considers evidence of the violation’s duration when determining whether the employer could have known of the conditions with the exercise of reasonable diligence. See Thomas Indus. Coatings, Inc., 23 BNA OSHC 2082, 2085 (No. 06-1542, 2012); Kaspar Wire Works, Inc., 18 BNA OSHC at 2196-97; Ragnar Benson, Inc., 18 BNA OSHC 1937, 1940 (No. 97-1676, 1999).

Here, one worker’s conduct climbing the lift’s rails was very brief. Considering the extremely short time during which this violative conduct took place, I find that evidence of what MPS’s foreman saw or could have seen, with the exercise of reasonable diligence, does not establish MPS’s knowledge of the lift rail exit climbing alleged as a general duty clause violation. Therefore, citation 1, item 1, is vacated.

Respondent’s Affirmative Defense – Unpreventable Employee Misconduct.

Respondent asserts the affirmative defense of unpreventable employee misconduct to each alleged violation. To establish this affirmative defense of unpreventable employee misconduct, “an employer must demonstrate that it (1) established a work rule to prevent the reckless behavior and / or unsafe condition from occurring, (2) adequately communicated the rule to its employees, (3) took steps to discover incidents of noncompliance, and (4) effectively enforced the rule whenever employees transgressed it.” P. Gioioso & Sons, 115 F.3d 100, 109 (1st Cir. 1997) (Gioioso I) (citations omitted); E.g., Manganas Painting Co., 21 BNA OSHC 1964, 1997 (No. 94-0588, 2007).

The First Circuit recognized the “OSH Act requires that an employer do everything reasonably within its power to ensure that its personnel do not violate safety standards” and that the employer must prove the affirmative defense of unpreventable employee misconduct to not be liable for the violative conduct. Modern Cont’l. Constr. Co., Inc. v. OSHRC, 305 F.3d 43, 51 (1st Cir. 2002) citing Gioioso (I), 115 F.3d at 109.

The factors illustrating Respondent’s constructive knowledge of the worksite hazardous condition also show that Respondent’s unpreventable employee misconduct defense fails. Burford’s Tree, Inc., 22 BNA OSHC at 1951-52 (the factors for evaluating constructive knowledge are the same factors for evaluating the unpreventable employee misconduct defense.

Respondent contends, if the Secretary establishes any violation, it was the result of unpreventable / unforeseeable employee misconduct. 43 (Resp. Br. 8-9, 20, 22-27, 34).

The Secretary contends that Respondent’s unpreventable employee misconduct defense fails because Respondent did not establish that Foreman Servizio took sufficient steps to discover the safety rule noncompliance of workers DaCruz and Jorge. Respondent’s defense also fails because Respondent did not establish that MPS effectively enforced its safety rules when employees transgressed the rules. (Sec’y Br. 14-15).44

MPS’s had fall protection rules designed to prevent the violations cited. The MPS fall protection rules were communicated to employees during CRM training sessions, new employee orientation, morning meetings with the jobsite foreman, and Toolbox Talks.

Respondent failed to take steps to discovery incidents of safety rule noncompliance

As described above, in the discussion regarding Respondent’s constructive knowledge of the violation of standard 29 C.F.R. § 1926.760(a)(1), MPS’s worksite supervision of the employees on the Upper Baby project was not adequate. On the day of the OSHA inspection, the safety rule noncompliance of workers DaCruz and Jorge was in plain view, readily observable by worksite Foreman Servizio. The fall protection violations were apparent and should have been known to Foreman Servizio. Foreman Servizio’s failure to see the open and obvious fall protection violations, that were in plain view, is evidence of Foreman Servizio’s failure to take steps to discover incidents of safety rule noncompliance.

Also, it appears Foreman Servizio did not recognize that workers DaCruz and Jorge working on the steel at twenty-nine (29) feet without being tied off was a safety rule violation. Foreman Servizio incorrectly believed that the worker who was welding was “connecting” and the fall protection requirement to be being tied off was not required below thirty (30) feet. Failure to properly monitor and enforce the steel erection fall protection rules on this worksite also discloses a failure to take steps to discover rule noncompliance.

CRM conducts unannounced safety inspections of MPS’s larger projects to check MPS employee compliance with the safety rules. Review of the few, select, CRM Work Site Safety Inspection Reports Respondent offered into evidence discloses serious safety violations or safety concerns observed by CRM. There is no record of MPS issuing discipline to the foremen or workers observed violating the safety rules. There is no evidence of safety program enforcement through MPS’s progressive disciplinary policies.

It is notable that CRM inspected MPS’s Upper Baby worksite twice, once before the OSHA inspection and once after. (Tr. 391). The Upper Baby CRM Work Site Safety Inspection Reports would be most relevant to the fact finding in this case. Respondent did not introduce these reports into evidence.

In the year before the Upper Baby project, Mr. Pimental had limited opportunity to step away from his office responsibilities and make worksite visits. (Tr. 117, 143, 240). This potential avenue of safety enforcement was not achieved or effective.

Respondent contends that the unpreventable employee misconduct defense succeeds where the violative conduct is truly idiosyncratic, implausible, and unforeseeable. (Resp. Br. 3, 7, 26, 31, 38; Resp. Reply Br. 3). Respondent had a safety rule requiring fall protection when working at fifteen (15) above a lower level. Respondent provided formal and informal fall protection training to employees. That said, Respondent also knew that serious fall protection violations previously had been observed on one of its worksites inspected by CRM. Respondent failed to enforce the fall protection safety rule and discipline the foreman and workers observed to have engaged in the unsafe conduct. The fall hazards cited in this case were known and foreseeable by Respondent. The conduct of workers DaCruz and Jorge was foreseeable. It was not idiosyncratic.

In summary, Foreman Servizio failed to effectively monitor MPS’s Upper Baby worksite to discovery worker noncompliance with MPS fall protection safety rules. On the OSHA inspection day, workers DaCruz and Jorge were observed and photographed by CO Leone walking on steel beams at a height of twenty-nine (29) feet above the ground level without being tied off to an anchor point. Obvious safety violations were in plain view had Foreman Servizio only looked. Foreman Servizio’s safety oversight and supervision was inadequate.

Respondent did not effectively enforce its safety rules when violations of the rules were discovered

The Secretary contends that MPS’s disciplinary program was haphazard and ineffective in its general application and inconsistent in safety rule enforcement when safety violations were discovered. (Sec’y Br. 17).

Respondent claims it used a progressive disciplinary system for when employees did not follow the safety rules. (Resp. Br. 21). The record shows otherwise.

Respondent had two written progressive disciplinary policies concerning safety. These policies remained on paper unused regarding observed, reported, MPS employee safety violations. MPS had a progressive disciplinary policy regarding safety violations included in the MPS Safety Program. (Ex. R-1; Ex. R-5(a); Ex. R-44). There is no evidence that an employee was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection.

MPS had a different progressive discipline policy regarding MPS rules, including safety rules, set forth in the June 11, 2015 letter from Mr. Pimental to employees. (Ex. R-35(a), pp. 3, 4; Ex. R-35(b), pp. 3, 4; Ex. R-35(c), pp.4, 5). There is no evidence that an employee was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection. (Ex. R-5(b), pp. 1, 2 (verbal warnings issued to foremen); Ex. R-35(a), pp. 3, 4). There is no evidence either MPS progressive disciplinary policy was used to enforce safety violations prior to the OSHA inspection.

Review of the few, “select,” CRM Work Site Safety Inspection Reports Respondent offered into evidence disclose serious safety violations or safety concerns observed by CRM. The CRM September 2015 inspection report of the MPS worksite at Herb Chambers Lincoln Volvo notes serious fall protection violations. MPS did not discipline the worksite foreman or workers observed engaging in the serious fall protection safety violations. (Tr. 300, 377-78; Ex. R-13, pp. 1, 4). Foreman Servizio was unaware of these fall protection violations. Communication by Respondent to foremen and employees regarding safety breaches was lacking. The opportunity to learn from the safety violation and promote safety compliance in the future was absent. (Tr. 377-78).

The only other disciplinary records in evidence are the verbal warnings given to workers DaCruz and Jorge for being on the steel, not being tied off, on the day of the OSHA inspection. (Ex. R-5(b), pp. 3, 4). As these verbal warnings were issued in response to fall hazards observed by the compliance office during the OSHA safety inspection, they are accorded limited weight when evaluating MPS’s enforcement of its worksite safety rules. Foreman Servizio was not disciplined for the fall protection violations observed on the day of the OSHA inspection.

In the period before and during the OSHA inspection, MPS did not take adequate steps to discover violations of MPS’s fall protection safety rules, and MPS did not effectively enforce the safety rules when violations were discovered. For the reasons set forth above, regarding Respondent’s constructive knowledge of the violation of standard 29 C.F.R. § 1926.760(a)(1), Respondent’s unpreventable employee misconduct defense fails. Respondent failed to meet its proof burden regarding this affirmative defense.

Under section 17(j) of the OSH Act, the Commission has the authority to assess civil penalties for the violation of citations. 29 U.S.C. § 666(j). In assessing penalties, the Commission is instructed to give due consideration to the size of the employer’s business, the gravity of the violation, the employer’s good faith, and its history of previous violations. Compass Envtl., Inc., 23 BNA OSHC 1132, 1137 (No. 06-1036, 2010) aff’d, 663 F.3d 1164 (10th Cir. 2011). The gravity of the violation is generally afforded greater weight in assessing an appropriate penalty. Trinity Indus., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992).

Regarding citation 1, item 2, CO Leone testified that the gravity assessed was high because of the fall hazards to which the employees were exposed and the severity of the injuries that could occur. A fall from the structural steel at twenty-nine (29) feet above ground could have resulted in death or permanently disabling injuries. The probability was greater as the two exposed workers DaCruz and Jorge walked and worked on the steel beams, a very small working surface, without fall protection. The workers were exposed to the hazard throughout the time CO Leone was present at the worksite photographing the workers. The gravity-based penalty for this citation was $12,675.00. Respondent was given a sixty (60) percent penalty reduction because of the employer’s size. The Secretary proposed penalty was $5,070.00. (Tr. 45, 53-55; Ex. R-9).

Regarding history, although Respondent had not been previously cited, there is no evidence of past OSHA inspections. (Tr. 80-81, 94-95). Therefore, Respondent’s history warrants neither an increase nor a decrease in the penalty amount. See M.V.P. Piping Co., Inc., 24 BNA OSHC 1350, 1352 (No. 12-1233, 2014) (finding that the history factor did not support a low penalty when the employer had not been inspected within the past five years).

In calculating the penalty, Respondent did not receive credit for good faith. (Tr. 80-82, 95; See Tr. 212-13; R-34). I find that the high gravity of this citation item warrants that factor receiving the most weight. Considering each statutory factor, a penalty of $5,070.00 is affirmed for citation 1 item 2.

In Summary

FINDINGS OF FACT AND CONCLUSIONS OF LAW

  The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based on the foregoing decision, it is hereby ORDERED:

Citation 1, item 2, alleging a serious violation of 29 C.F.R. § 1926.760(a)(1) is Affirmed and a penalty of $5,070.00 is assessed.

Citation 1, item 1, alleging a serious violation of the general duty clause is Vacated.

SO ORDERED.          

          /s/ Carol A. Baumerich

          Carol A. Baumerich

Judge, OSHRC

Dated: October 13, 2020

Washington, DC